CPSIA Update: Not the Optimal Way to Implement a Statute

Another turn this week in the strange, job-killing world of implementing the Consumer Product Safety Improvement Act, the benighted CPSIA.

On Tuesday, the Consumer Product Safety Commission voted 2-0 to deny the petition from the Bicycle Products Suppliers Association to exclude children’s bicycles from the lead content limits of the CPSIA. Which is to say, it is now illegal to sell kids bikes if there’s a possibility there might be infinitesimal amounts of lead in the alloys where the spokes are attached to the rims.

We are compelled to deny the petition because the language of the statute does not give us the flexibility to do otherwise, even though our staff does not believe that lead exposure from using bicycles and related products presents a risk that they would recommend the Commission regulate. The risk assessment methods traditionally used by the Commission in evaluating exposure to lead are no longer available to us under the CPSIA.

Nevertheless, we also recognize, as we did when presented with a similar petition filed by the All Terrain Vehicle industry, that safety requires the presence of some lead in the metal used in the product to insure structural integrity. I am also mindful of the staff’s findings that the contact children may have with the parts of the products that contain lead is not extensive and would not present a risk as we have traditionally understood the term—that is, would not increase blood lead levels in any measurable way. Presented with the dilemma of inflexibility in the law vs the need for regulatory action that recognizes safety and good sense considerations, we are opting to stay enforcement.

This course of action is becoming all too frequent for the CPSC. It is needed to avoid market disruptions and to protect consumers. However, it is not the optimal way to implement a statute.

The CPSC has stayed its enforcement of the lead content limits for children’s bikes (and jogger strollers and bicycle trailers), which doesn’t mean that the products are legal, just that the commission won’t track down and fine people who manufacturer or sell them. Nevertheless, the legal liability remains. The law allows enforcement by state attorneys general, and there is the threat of private lawsuits — a class-action lawsuit a few years down the road seems possible.

This is not the optimal way to implement a statute. But then, it’s not an optimal statute. Congress needs to change the CPSIA.